NI Court of Appeal: Minor’s challenge to Untraced Drivers’ Scheme dismissed

About this case:

• Citation:
  [2026] NICA 33
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mr Justice Gerry McAlinden

Delivering judgment for the Court of Appeal in June, Mr Justice Gerry McAlinden made it clear that in the context of future applications brought under the Untraced Drivers’ Agreement 2004, the tests of equivalence and effectiveness may not be satisfied unless assurances and facilities similar to those made by the Motor Insurers’ Bureau in the case before the court were offered.

The court also recommended that the MIB should consider replicating the approach adopted by the Compensation Agency in criminal injuries cases involving minors and persons under a disability, with a view to formalising arrangements for the investment of compensation awards in a bespoke account.

Mr R Lavery KC appeared with Mr C Fegan for the Applicant instructed by McIvor Farrell Solicitors, Mr T McGleenan KC appeared with Mr Phillip McAteer instructed by the Departmental Solicitor for the first Respondent and instructed by the Crown Solicitor’s Office for the Notice Party, and Mr Donal Sayers KC appeared with Mr C Coyle for the second Respondent instructed by Clyde & Co, Solicitors.

Background

On 22 August 2011, the appellant, then two months old, sustained minor soft tissue injury when his pram was struck by an unidentified vehicle on the public highway.

The appellant’s mother brought a claim for compensation under the Untraced Drivers’ Agreement 2004 on his behalf.

The Motor Insurers’ Bureau (MIB) investigated the claim and awarded £500 compensation. This initial determination was rejected by the appellant’s mother, who stated that, having obtained counsel’s opinion, the injuries warranted a sum of £1,500.

In October 2018, the MIB made an offer in that amount. The appellant’s solicitors indicated that while the offer was acceptable, it required approval by a judge and should be put before the court through a minor’s petition.

The appellant’s solicitors further suggested that if the proposal was so approved, then the funds should be paid into the Courts Funds Office and should remain invested there until the appellant reached his age of majority.

The solicitors alleged that this course of action was necessary to protect the minor appellant’s interests and if agreed to by the MIB, the appellant would be entitled to his costs.

The MIB refused to allow the issue to be brought before the court and insisted that that the agreed sum be paid directly to the appellant’s mother, despite advice to the effect that she lived an unstable lifestyle and should not hold compensation monies on the appellant’s behalf.

The appellant commenced judicial review proceedings against the MIB, alleging that the compensation scheme for victims of untraced drivers established under the 2004 Agreement breached the EU law principles of equivalence and effectiveness having regard to the purpose and content of Directive 2009/103/EC, where it failed to provide equivalent procedures to those available to victims of identified drivers, and that this difference amounted to unlawful discrimination.

The appellant further alleged that the 2004 Agreement stymied his right of access to the courts, in breach of common law and his European Convention on Human Rights (ECHR) rights, contending that the right to compensation for injuries caused by untraced drivers gave rise to a direct cause of action against the MIB as the body responsible for administering the scheme.

In the interim, a final offer of £2,901.28 including interest was made and it was proposed by the MIB that the award could be paid to a nominated adult to hold the funds on the appellant’s behalf until his majority.

The High Court rejected the appellant’s arguments, leading him to appeal to the Court of Appeal.

The Court of Appeal

Mr Justice McAlinden noted that the MIB had attempted to address two central issues raised by the appellant, being a mechanism for the independent assessment of the adequacy of the offer (in highlighting his right to appeal to an arbitrator) and a method for protecting the award made (in stating that if no suitable adult could be nominated, an application could be made to the court to appoint the Official Solicitor as guardian of his estate).

The judge considered that the compatibility of the MIB Agreements with EU law had previously been tested before the predecessor to the Court of Justice of the European Union (CJEU) in Evans v the Secretary of State for the Environment, Transport and the Regions (Case C-63/01), which concluded inter alia that “the body responsible for awarding compensation does not necessarily have to be placed, as far as civil liability is concerned, on the same footing as a defendant such as the driver of an identified and sufficiently insured vehicle.”

Having considered the parties’ positions, the Court of Appeal was satisfied that the right of appeal to an arbitrator under the 2004 Agreement was equivalent to and as effective as the procedure for court approval of a minor settlement, having regard to inter alia the independence and expertise of an arbitrator, the availability of an oral hearing with representation, and the ability of the arbitrator to increase an award.

As to the investment of the award, the court accepted that the appointment of the Official Solicitor as guardian of the minor’s estate also satisfied the test of equivalence and effectiveness, particularly in light of an undertaking given by the MIB in respect of the costs or fees incurred.

However, the court emphasised that the principles of equivalence and effectiveness might not be met in the absence of similar facilities and assurances being offered by the MIB as were offered in the case before it.

The court further advised that the MIB should give consideration to replicating the approach adopted by the Compensation Agency in respect to awards to minors and those under a disability under the Criminal Injuries (Northern Ireland) Order 2002 with a view to formalising arrangements for the investment of awards to minors and persons under a disability in a bespoke account.

As to the alleged breaches of the appellant’s rights, Mr Justice McAlinden was satisfied that there was no legitimate basis for arguing that Article 6(1) ECHR was infringed by the operation of the inquisitorial investigative process under the provisions of the 2004 Agreement, having regard to the procedures available.

The judge also considered that the discrimination claim was similarly bound to fail, noting inter alia that the test of justification for any differences in the approaches adopted by the state was “manifestly satisfied”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

In the Matter of an Application by Conal Morgan (A Minor) by his Grandfather and Next Friend, Patrick Ryan, to Apply for Judicial Review [2026] NICA 33